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A federal judge on Thursday dismissed a copyright lawsuit claiming Nickelback ripped off its 2006 hit “Rockstar” from an earlier song called “Rock Star.”
Adopting recommendations from a lower judge, U.S. District Judge Robert Pitman ruled that there was zero evidence that Chad Kroeger and the other members of the 2000s rock band ever heard Kirk Johnston’s earlier song – and that the two songs also just didn’t share much overlap.
“Stated simply, they do not sound alike,” the judge wrote in the order adopted Thursday. “Where both songs evoke similar themes, they are rendered dissimilar through the vivid detail of the original expression in Nickelback’s lyrics.”
Johnston, the lead singer of a Texas band called Snowblind Revival, claimed the two songs shared many closely-related lyrics, about rock star lifestyles, making huge amounts of money, and having famous friends. But Thursday’s ruling said that after a review of the lyrics, that accusation at times “borders on the absurd.”
“This includes, for example, any suggestion that the two baseball analogies in Nickelback’s work are evidence that the band copied Johnston’s lyric ‘might buy the Cowboys’ professional football team simply because both are ‘references to sports’,” Judge Pitman wrote.
The only real similarities between the two songs, the judge wrote, were basic cliches — “outlandish stereotypes and images associated with being a huge, famous, rock star” – that cannot be monopolized by any one songwriter.
The judge specifically pointed to a study that reported 17 other popular songs that had shared similar themes about rock stars, ranging from “So You Want To Be A Rock And Roll Star” by The Byrds in 1966 to “Rockstar” by Poison in 2001.
Attorneys for both sides did not immediately return requests for comment on the decision.
Released on Nickelback’s 2005 album All the Right Reasons, “Rockstar” has not aged well with critics. In 2008, the Guardian said the song “makes literally no sense and is the worst thing of all time.” In 2012, Buzzfeed listed it as the second-worst song ever written, citing it as an example of “why everyone hates Nickelback so much.” But the song was a commercial hit, eventually reaching No. 6 on the Hot 100 in September 2007 and ultimately spending nearly a year on the chart.
Johnston sued in May 2020, claiming the hit song had stolen “substantial portions” of his own “Rock Star,” including the “tempo, song form, melodic structure, harmonic structures, and lyrical themes.”
But in Thursday’s ruling, Judge Pitman said Johnson had failed to show that Nickelback had “access” to his song in order to copy it – a key requirement in any copyright lawsuit. He argued that his band Snowblind Revival had performed at the same venue as Nickelback, but the judge said that was not enough.
“Johnston has presented no probative evidence that defendants had a reasonable opportunity to hear plaintiff’s work.
Without proof that Kroeger or anyone else heard the song, Johnston would have needed to prove that the songs were almost identical – “strikingly similar” in copyright law parlance. And Judge Pitman said he fell very far short of that.
“The Court has conducted a side-by-side examination of the works, carefully listening to and considering all versions of the songs of record,” the judge wrote. “As an ‘ordinary listener,’ the court concludes that a layman would not consider the songs or even their ‘hooks’ to be strikingly similar.”
It is time for all music industry professional to reflect on the ways in which our industry has perpetuated a system that benefits a select few at the expense of marginalized communities. It is time for us to embrace a new paradigm, one that values skill and merit over relationships and aristocratic privilege.
In today’s rapidly changing world, the music industry finds itself on the brink of disruption. We must recognize that our long-standing history of exploiting disenfranchised groups is incompatible with our espoused values of social justice and inclusivity. The hesitance to be proactive and embrace change is no longer acceptable. The data clearly shows the consequences of our delayed reaction. We must act now to ensure that the pendulum swings in the right direction.
Our participation in an aristocracy-based system allows white men with access to rights ownership to hijack black and brown stories. This approach is no longer effective in today’s music economy. As independent artist services have grown, ownership has increasingly been placed in the hands of artists, and a focus on “artist-preneurship” has emerged. This growth in the independent sector has led to decentralized systems that cut out middlemen and gatekeepers, promoting transparency and accountability.
We must recognize that the music industry is no longer a playground for profit-driven oligarchs who lack leadership skills and contribute to revolving door politics, loss of job fulfillment, and opportunities. In every other industry, a minimum level of skill, education, or experience is required to advance. It is essential to evaluate how the music industry holds its leaders accountable.
Aristocracy drives a wedge between culture and progression, and limited access to BIPOC at both the creative and executive levels makes the industry slow to change, perpetuating a “boys club” culture. The top 1% of the industry often rely on DEI consultants to meet an “optics quota,” promoting performative change rather than real progress. We must recognize that diversity and inclusion are not just buzzwords. They are essential for driving revenue and ensuring long-term success.
The statistics show that black and brown stories are highly valued in the music industry, with 48% of all artists being from underrepresented groups and Hip-Hop and R&B being the top-streamed genres. By embracing diversity and promoting inclusion, the industry can tap into a vast market of music consumers who are eager to hear authentic and diverse voices. It is not only the right thing to do, but it is also a sound business strategy that can result in increased revenue and success for music companies.
Despite the economic disadvantages they face, women of color are a value add, possessing a strong educational background, resourcefulness, and fundamental understanding of the music business. In producing the first research study on intersectionality in the music business, ‘A Seat at the Table: A Perspective on Women of Color in the Music Business’ (2022), we found that 87% of all WOC in the music biz have earned at least a Bachelor’s or higher degree of education, yet they remain the most underpaid demographic. The majority of WOC in the music business enter into student loan debt, while also entering into the music business via unpaid internships. Over 86% were hired without direct relationships or industry connections. Imagine how much progress would be made if resources were properly invested.
Therefore, I urge us all to shift from an aristocratic hierarchy to a meritocratic one. By valuing skill and merit over relationships and privilege, we can ensure true diversity, equity and inclusion in the music industry. We must commit to deliberate action, such as hiring more BIPOC at the senior level, committing to paid internships, and funding black-owned music businesses. These steps are crucial towards creating a more equitable and profitable music industry.
Let us embrace the future with open hearts and minds, committed to creating a music industry that is truly inclusive and reflects the diversity of our world.
Janishia Jones is the CEO and founder of Fresh N Sassy Productions. Earlier this year, she launched the music tech consultancy company ENCORE Music Tech Solutions.
TikTok was dismissive Wednesday of reports that the Biden administration was calling for its Chinese owners to sell their stakes in the popular video-sharing app, saying such a move wouldn’t help protect national security.
The company was responding to a report in The Wall Street Journal that said the Committee on Foreign Investment in the U.S., part of the Treasury Department, was threatening a U.S. ban on the app unless its owners, Beijing-based ByteDance Ltd., divested.
“If protecting national security is the objective, divestment doesn’t solve the problem: a change in ownership would not impose any new restrictions on data flows or access,” TikTok spokesperson Maureen Shanahan said. “The best way to address concerns about national security is with the transparent, U.S.-based protection of U.S. user data and systems, with robust third-party monitoring, vetting, and verification, which we are already implementing.”
The Journal report cited anonymous “people familiar with the matter.” The Treasury Department and the White House’s National Security Council declined to comment.
Late last month, the White House gave all federal agencies 30 days to wipe TikTok off all government devices.
The Office of Management and Budget called the guidance a “critical step forward in addressing the risks presented by the app to sensitive government data.” Some agencies, including the Departments of Defense, Homeland Security and State, already have restrictions in place. The White House already does not allow TikTok on its devices.
Congress passed the “No TikTok on Government Devices Act” in December as part of a sweeping government funding package. The legislation does allow for TikTok use in certain cases, including for national security, law enforcement and research purposes.
Meanwhile, lawmakers in both the House and Senate have been moving forward with legislation that would give the Biden administration more power to clamp down on TikTok.
Rep. Mike McCaul, the chairman of the House Foreign Relations Committee, has been a vocal critic of the app, saying the Chinese Communist Party is using it to “manipulate and monitor its users while it gobbles up Americans’ data to be used for their malign activities.”
“Anyone with TikTok downloaded on their device has given the CCP a backdoor to all their personal information. It’s a spy balloon into your phone,” the Texas Republican said.
TikTok remains extremely popular and is used by two-thirds of teens in the U.S. But there is increasing concern that Beijing could obtain control of American user data that the app has obtained.
The company has been dismissive of the ban for federal devices and has noted that it is developing security and data privacy plans as part of the Biden administration’s ongoing national security review.
On Wednesday, March 15, fast-rising rapper blxst and his business partners, manager Victor Burnett and attorney Karl Fowlkes, opened up to Billboard’s Heran Mamo during one of SXSW’s 2023 featured sessions: How Music, Entrepreneurship, & Independence Intersect.
While the three discussed everything from how they first connected to what’s coming up next (“I’m cooking up something big right now,” teased blxst), the conversation primarily focused on the artist’s multi-faceted entertainment company Evgle.
Launched as an independent label in 2018, with Burnett and Fowlkes joining as co-founders, Evgle has since expanded to be all-encompassing – a reflection of blxst himself, who compares his many skills including production, graphic design and more to the feeling of constantly playing a video game – and always leveling up.
Most recently, blxst – who was named Billboard’s 2022 R&B/Hip-Hop Rookie of the Year – released a sequel EP, Just For Clarity 2, through Evgle’s partnership deal with Red Bull Records. Here are the insights he and his tight-knit team shared about how to be a successful entrepreneur and maintain your independence along the way.
1. Build With People Who Share Your Goals.
As Mamo pointed out during the conversation, Fowlkes is the rare forefront lawyer – and, much like blxst and Burnett, never wanted to confine himself to just one role. As he put it, “Lawyers have a vantage point in so many aspects of the business, we all view ourselves as dynamic people… we don’t just do one thing. We’re the type of people who want to run a business, be a lawyer, be a professor… so having those aspirations, it was easy to connect with [blxst and Victor] because of common themes of generational wealth and building something really special.”
And while blxst added, “I always had a vision of making this bigger than me, and having other artists eat as well,” perhaps Burnett best summarized why this trio works so well. “One thing that made us like each other was: we want to own everything.”
2. Hire Believers.
When asked how they built the 10+ person team at Evgle, the three said they sought people who have specific traits: self-sufficient, already working in their craft, and able to walk into an opportunity they may not think they are capable of handling at first. “You have to hand things off and trust, that’s the base of it,” said Burnett.
Added Fowlkes, “People don’t view music companies as start ups, but this is a start-up. So we needed people who believed. Creating a culture where people believe is super important when you’re building any company at the ground stages.”
3. Learn Your LOMO.
Blxst said the debate between remaining independent and signing to a major is a case-by-case scenario, but as it pertains to him, “I wanted to build my own leverage first, I understood the importance of bringing something to the table.”
Fowlkes, speaking like a true attorney, then revealed the acronym LOMO: length obligation money and ownership. “Coming into any partnership you should know those things,” he said, noting that Issa Rae talks about the concept often. “If you want to come in at the highest point of ownership, there’s a lot you have to [do first].”
4. Make Noise.
Burnett, who has a masters in PR and media development, shared his advice for young independent artists looking to break through on their own terms. He recalled something his professor told him that stuck: “Keep your channel noisy. Stay in front of your consumer with merch, pop-up shops, activations. Make sure the consumer is always interacting with your brand.”
5. Start Now.
“Don’t wait 20 years into your career to worry about what’s next,” cautioned Fowlkes. “Jay-Z, Nas, so many have created these channels for themselves, but later in their career. The cultural currency that [blxst is] developing… If you can strike when you’re hot, when you’re at your peak, if we can capitalize at that moment, it’s [game] over.”
6. Manifest Your Goals.
Early in the session, blxst discussed where the idea for the company name came from. “I always had confidence issues growing up,” he confessed. “The eagle is one of the highest-flying birds, but doesn’t fly in flocks … That represented confidence.”
Alex Coslov rises to executive vp of marketing strategy at Republic Records and head of marketing at Mercury Records, a dual role and a reward for leading the campaign for Morgan Wallen’s One Thing At A Time and other hits.
Based in Republic’s New York City headquarters, the marketing exec is a past 40 under 40 honoree in Billboard, and he’s had a hand in a growing list of wins. His professional highlights include Wallen’s blockbuster One Thing At A Time, which recently blasted to No. 1 on the Billboard 200 chart with over 501,000 equivalent album units in its debut frame, this year’s best single-week tally; and Glass Animals’ slow-burning Billboard Hot 100 leader “Heat Waves.”
Coslov continues to lead marketing for frontline releases for Wallen, Pearl Jam, Eddie Vedder, Greta Van Fleet, Florence + The Machine, Noah Kahan, James Blake and Yung Gravy, reads a statement issued today (March 16).
“Alex intimately understands his artists at a core level,” comments Republic co-president Jim Roppo. “He speaks their language and immerses himself in their respective worlds for every single release. This is his superpower. By doing so, he develops innovative campaigns that reflect their identities and, simultaneously, engage audiences from a fresh perspective. It’s an honor to announce his promotion.”
Adds Mercury president Tyler Arnold, “we are thrilled to officially welcome Alex to the Mercury family. He is one of the most innovative and forward-thinking executives in our industry and has already played an integral role in the success of our artists’ careers. We cannot wait to shape this next chapter of Mercury Records together.”
Coslov joined Republic Records in 2017 as vp of marketing strategy, and has served as senior vp of marketing strategy since 2021. That five-year run has yielded four CLIO Awards, the annual award program that celebrates excellence in advertising, design and communication. Prior to that, Coslov chalked up four years with dance music brand Ultra Music, where he led its marketing department. Earlier roles included internships with SESAC, Epic Records and Red Light Management.
Mammoth WVH, the hard rock band led by Wolfgang Van Halen, has signed a global record deal with BMG for its forthcoming second studio album. The band has also signed a publishing deal with BMG.
“The Mammoth team and I are so excited to now be a part of the BMG family,” Van Halen said in a statement. “The entire team have welcomed us with open arms and have been nothing short of wonderful. I couldn’t ask for better partners for the future of Mammoth.”
The BMG release, coming this summer, will follow Mammoth WVH’s 2021 self-titled debut on EX1 Records. That set reached No. 1 on Billboard’s Top Hard Rock Albums and Top Rock Albums charts, as well as No. 12 on the Billboard 200. It also included two No. 1s on the Mainstream Rock Airplay chart — “Distance” and “Don’t Back Down” — while a third song, “Epiphany,” reached No. 9. The group became the first act to send its first two songs to No. 1 on that chart since The Glorious Sons in 2019.
At the time of the debut album’s release, Van Halen, who played every instrument on the effort, told Billboard, “I’m so proud of this record and have never worked harder on anything in my life. This is only the beginning. Thank you for being a part of this journey with me.”
Van Halen, the son of late rock god Eddie Van Halen, previewed the new album at Los Angeles’ 5150 Studio in Los Angeles March 6-7. The group’s name comes from the original moniker for his father’s band, Van Halen.
Dan Gill, BMG executive vp of recorded music, said in a statement, “It is rare to come across an artist with such exceptional musical abilities and Wolfgang is that shining example. His new album firmly establishes himself at the forefront of the genre and is destined to become the torch bearer for the new generation of Rock artists.”
Emi Horikawa, BMG vp of creative, added, “From our very first listen to Mammoth WVH, we knew this was something truly exceptional. Wolfgang’s songwriting and sense of melody, coupled with his ability to reinvent the elements of Rock’s power and energy, is sheer talent. We are proud to represent his music publishing and now call BMG his label home.”
Morgan Wallen’s new album, One Thing at a Time, didn’t need 36 songs to reach No. 1 on the Billboard 200 chart (dated March 18)— but the sprawling tracklist certainly didn’t hurt. The country singer’s third studio album notched 501,000 album equivalent units in its first week of release, according to Luminate, the biggest week of 2023 and one of the largest debuts in recent months.
One Thing at a Time undoubtedly benefited from its stats-padding length, but it still would have dominated the Billboard 200 had Wallen and his label, Big Loud Records, opted for an average length. With the bottom 18 tracks accounting for 36% of the album’s total on-demand streams, if One Thing were a single-CD, 18-track release, Billboard estimates it would have moved about 360,000 units last week — putting it well ahead of the No. 2 album, SOS by SZA. The 10 most popular tracks amounted to 41.8% of the album’s streams, with the track “Last Night” alone accounting for nearly 9% of the 36 tracks’ aggregated streams.
In fact, an 18-track One Thing at a Time would have bested most recent No. 1 albums in their debut weeks, including Lil Baby’s It’s Only Me (216,000 units), SOS (318,000 units), Metro Boomin’s Heroes & Villains (185,000 units) and Tomorrow X Together’s The Name Chapter: TEMPTATION (161,000 units). (That’s assuming One Thing at a Time would have sold the same number of CDs and digital albums with half as many songs.) Only two recent albums, Her Loss by Drake and 21 Savage (404,000 units) and Taylor Swift’s Midnights (1.58 million units), had better debut weeks than the hypothetical, 18-track One Thing at a Time.
One Thing at a Time is part of a curious paradox in current recorded music, as the widespread adoption of streaming services has caused artists to release single tracks more often while releasing increasingly lengthier albums, too. While the album is waning in popularity, it remains a vital artistic statement and commercial event.
The trend of longer albums runs counter to the experimentations of the early days of digital music. When Napster arrived in the late ’90s, many people believed file-sharing marked the death of the album format. In the ’00s, as consumers increasingly purchased individual tracks at online stores like Apple’s iTunes, labels experimented with the new paradigm. In 2005, Warner Music Group and Elektra Records founder Jac Holzman launched a digital-only label, Cordless Music, that released music exclusively in “clusters” of three or more songs instead of albums or singles. In 2010, country star Blake Shelton released two six-song EPs — called “six paks” — rather than a single 10- or 12-track album.
Today, streaming dominates music consumption and impacts how artists and labels package music. Album sales are lower than ever, but album lengths have never been longer. Because fans can stream an unlimited amount of music for a fixed price, artists can add songs knowing that a longer album equals more streams. And because streams tend to account for far more of an album’s chart position than downloads and purchases, artists have an incentive to keep people listening.
The result has been “track creep,” a consistently rising number of songs on popular albums. In 2022, the top 10 albums on the year-end Billboard 200 chart averaged 19.1 tracks and 69.9 minutes. The top album, Bad Bunny’s Un Verano Sin Ti, has 23 tracks and runs 81 minutes. Un Verano Sin Ti is a product of the streaming age: Physical album sales account for just 1.1% of its album equivalent unit sales compared to 97.5% for streaming. Track creep is made easier considering that many albums, such as SOS and Drake’s 21-track Certified Lover Boy, don’t have physical versions.
Changes in how albums are counted for the Billboard 200 can probably help explain some of the track creep: In 2014, the year Billboard began incorporating streams into the Billboard 200 chart, the top 10 albums averaged 13.2 tracks and 51.9 minutes, meaning album lengths have increased by about six tracks and 18 minutes in the last eight years. (Here, Billboard counts only studio albums and excludes soundtracks and Broadway cast recordings, which are filled with score and instrumental tracks.)
In 1992, when CD sales began to dominate recorded music revenues, the top 10 albums averaged 11.9 tracks and 51.1 minutes. Garth Brooks had two of the four 10-track albums in the top 10 — Ropin’ the Wind and No Fences — and the longest, Totally Krossed Out by hip-hop duo Kriss Kross, had just 15 tracks. Albums — particularly in the country genre — often topped out at ten tracks, a limit set by record labels for paying mechanical royalties to music publishers.
In 1977, when the vinyl LP ruled the industry, the top 10 albums averaged 10.3 tracks and 45.1 minutes, and half of them had fewer than 10 tracks. The longest, Stevie Wonder’s double album, Songs in the Key of Life, had fewer tracks — 17 — than half of 2022’s top 10 albums. The top album of 1977, Fleetwood Mac’s Rumours, ran only 39 minutes — a full half-hour shorter than the average length of 2022’s top 10 albums. (In the 1977 top 10, Billboard included the soundtrack to A Star Is Born, which had only 11 tracks. That’s compared to 32 tracks for the Frozen soundtrack, the top album of 2014.)
One Thing at a Time might not need 36 tracks to top the Billboard 200, but having more songs means the album gets more streams and generates greater royalties. The least-popular 18 songs amassed 170.3 million on-demand streams in the album’s debut week. If those 18 tracks were released as a separate album — similar to the way Guns N’ Roses released Use Your Illusion volumes 1 and 2 simultaneously in 1991 — it would have been the No. 2 album of the week. Additional tracks provide diminishing returns but can contribute meaningfully to a successful record. Wallen’s previous album, the 32-track Dangerous: The Double Album, has received about 22% of its total track consumption — streams plus downloads — from its less-popular half. For a label that invests heavily in marketing and promoting an album, track creep can improve the return on each release.
Something the One Thing album has that single tracks and EPs lack is the oomph surrounding their marketing and promotion. In the wake of Napster, people may have underestimated the album’s ability to be an event unto itself. Single tracks get the attention of both fans and streaming services’ algorithms, but neither has the promotional impact of releasing a full album. As long as a label is driving awareness to a new release, why not give fans a few more songs?
Plus, artists don’t release albums as frequently as they used to. In the late ‘70s, artists often put out an album every year. Today, an artist will take two or three years — and often longer — between albums. Putting out longer albums could help labels make up for these widening gaps, with the caveat that only superstar releases tend to merit the kind of sprawling length seen in the form of recent releases by Wallen, Drake and others.
This kind of full-court press also serves to prolong — and boost — the success of individual tracks that would fade more quickly without an album attached. Eight of the 36 tracks on One Thing at a Time were released prior to the album’s street date and putting up strong numbers on their own. Still, their streams increased 89% the week of the album’s release. Four of the 8 tracks ended up in the Billboard Hot 100. In its sixth week on the Hot 100, Wallen’s single “Last Night” shot from No. 5 to No. 1 after a 53.5% jump in streams. Three other previously released tracks — “One Thing at a Time,” “You Proof” and “Thought You Should Know” — broke into the top 10 of the Hot 100.
On Wednesday, March 15, Billboard editor Taylor Mims moderated a panel at SXSW that discussed the touring industry’s post-pandemic status. Featuring panelists Sara Mertz (VP of music partnerships at Tixr), Liz Norris (manager at Activist Artists Management) and Sarah Tehrani (music touring agent at WME), the panelists voiced concerns about saturation on the road, rising touring costs and the increase in specialized live experiences.
Mertz recalled how as quarantine restrictions lifted and tickets went back on sale, there was “lots of excitement” and a massive rush back to get back the road. But then the industry was then hit with subsequent variants, leading to cancellations en masse. “What we’ve been experiencing the last few years is a pendulum,” she explained.
And while Tehrani added that she has hopes for the industry to level out next year — for which agents at WME are already booking now — Norris explained that “nothing will be the exact same as it was in 2019,” given consumer behavior has changed over the last few years, along with other factors.
“People want a more specialized, curated experience than ever,” said Tehrani. “Rather than these big, throw-everything-at-the-wall-and-see-what-sticks festivals that are focused on going and discovering new music, we’re seeing more interest in boutique festivals.” For example, music fans seem more interested, in Tehrani’s approximation, to see a one-day legacy hip-hop festival than ever, and meanwhile larger-scale, broad appeal festivals are struggling to get the same sales as they once did.
Some artists Tehrani works with, like R&B singer-songwriter UMI, have even tried incorporating new elements to make their tours stand out, like adding in a meditation practice offered as a VIP experience at her shows to boost fan engagement and spread her passion for wellness.
Such experiences are becoming more crucial as the cost of touring continues to rise with inflation — and as a result of cutbacks on positions like bus drivers and sound engineers — leaving consumers to be pickier about which shows they attend.
But still, this strategy is challenged by a high no-show rate. “Attrition remains an issue,” said Mertz. “I don’t know what it is. I was just meeting with a couple of clients last night and they’re like, ‘We don’t understand it, at our sold-out shows, still 20-25% of people are not showing up. Why?’”
In 2021 the issue was attributed to lingering pandemic concerns, but now one of the only explanations the panelists provided was the possibility of increasingly cunning scalpers. “I do think that scalper activity has increased a lot over the last few years,” said Mertz. “It’s a business now.”
For Norris, whose management firm represents Dead & Company, Michael Franti, and the Lumineers, she said one of the industry’s most pressing concerns is “to do a lot of work to make sure the fans aren’t the ones that pay the price” of today’s higher touring costs.
At the same time, the panelists did identify some positive changes that have emerged in live music over the last few years. “Mental health is now at the forefront,” said Norris.
“Having a therapist and physical therapists on the road is new,” added Tehrani. “We’ve always had vocal coaches and stuff like that, but people are definitely thinking about how to take better care of each other. That’s a very good thing”
A new policy report from the U.S. Copyright Office says that songs and other artistic works created with the assistance of artificial intelligence can sometimes be eligible for copyright registration, but only if the ultimate author remains a human being.
The report, released by the federal agency on Wednesday (March 15), comes amid growing interest in the future role that could be played in the creation of music by so-called generative AI tools — similar to the much-discussed ChatGPT.
Copyright protection is strictly limited to content created by humans, leading to heated debate over the status of AI-generated works. In a closely-watched case last month, the Copyright Office decided that a graphic novel featuring AI-generated images was eligible for protection, but that the individual images couldn’t be protected.
In Wednesday’s report, the agency said that the use of AI tools was not an automatic ban on copyright registration, but that it would be closely scrutinized and could not play a dominant role in the creative process.
“If a work’s traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it,” the agency wrote. “For example, when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the traditional elements of authorship are determined and executed by the technology — not the human user.”
The report listed examples of AI-aided works that might still be worthy of protection, like one that creatively combined AI-generated elements into something new, or a work that was AI-generated that an artist then heavily modified after the fact. And it stressed that other technological tools were still fair game.
“A visual artist who uses Adobe Photoshop to edit an image remains the author of the modified image, and a musical artist may use effects such as guitar pedals when creating a sound recording,” the report said. “In each case, what matters is the extent to which the human had creative control over the work’s expression and ‘actually formed’ the traditional elements of authorship.”
Under the rules laid out in the report, the Copyright Office said that anyone submitting such works must disclose which elements were created by AI and which were created by a human. The agency said that any AI-inclusive work that was previously registered without such a disclosure must be updated — and that failure to do so could result in the cancellation of the copyright registration.
Though aimed at providing guidance, Wednesday’s report avoided hard-and-fast rules. It stressed that analyzing copyright protection for AI-assisted works would be “necessarily a case-by-case inquiry,” and that the final outcome would always depend on individual circumstances, including “how the AI tool operates” and “how it was used to create the final work.”
And the report didn’t even touch on a potentially thornier legal question: whether the creators of AI platforms infringe the copyrights of the vast number of earlier works that are used to “train” the platforms to spit out new works. In October, the Recording Industry Association of America (RIAA) warned that such providers were violating copyrights en masse by using existing music to train their machines.
“To the extent these services, or their partners, are training their AI models using our members’ music, that use is unauthorized and infringes our members’ rights by making unauthorized copies of our members works,” the RIAA said at the time.
Though Wednesday’s report did not offer guidance on that question, the Copyright Office said it had plans to weigh in soon.
“[The Office] has launched an agency-wide initiative to delve into a wide range of these issues,” the agency wrote. “Among other things, the Office intends to publish a notice of inquiry later this year seeking public input on additional legal and policy topics, including how the law should apply to the use of copyrighted works in AI training and the resulting treatment of outputs.”
Read the entire report here:
To TikTok, or not to TikTok, that is the question.
Plus, many more regarding the app’s instrumental role in making hits — and how an artist can participate in the process meaningfully — were addressed during “The Fight for Artistic Authenticity on TikTok” panel at SXSW 2023.
Moderated by Billboard‘s Lyndsey Havens, the panel featured experts Ash Stahl, CEO of TikTok-first creative studio Flighthouse; Alana Dolgin, head of influencer strategy at independent record label and influencer management company Homemade Projects; and Mekaila Morris, senior manager of creators & content at Interscope Records.
The conversation opened with stories of successful TikTok campaigns each panelist had worked on. Stahl remembered working on Surface‘s “Sunday Best,” the electro-pop duo’s vibrant 2019 track that became part of the first crop of TikTok smash hits the following year. “We had a team member just add in a little ad-lib at the beginning that was like, ‘2020 rewind’ and then just put this song at the end of it,” she said. “You can see this huge spike of millions of new listens on Spotify that, one year later, really reinvigorated the song.”
Dolgin described SAINt JHN‘s “Roses” (which was originally released in 2016 and later remixed by Kazakh producer Imanbek at the end of 2019) as being in the “first class of viral hits on TikTok” and mapped out the song’s trajectory to becoming a global anthem, starting in Russia and then spending $2,000 — “which obviously now we know is absolutely nothing in this space,” she said — to move it through the U.S. and ultimately around the world.
Dolgin explained that part of the artistic authenticity element on the platform is knowing when it’s not the right move to have the artist behind a trending song hop on TikTok and participate in whatever fanfare is elevating its exposure through UGC (user-generated content) and streams. “You don’t necessarily need to be on TikTok if you’re an artist. There’s so many songs that are going viral constantly that have nothing to do with the artist that when you try to bring the artist in it truly doesn’t make sense, I think it does more harm than good,” she said.
Having also had success working Cardi B’s “Up,” Dolgin added: “We use her voice all the time with ad-libs that go viral. Sure, she posts on TikTok sometimes, but she approves every sound snippet.”
Morris continued that thought, speaking about Machine Gun Kelly‘s 2022 single “Emo Girl,” featuring Willow, and how she worked closely with him to determine the most authentic ways for him to be on TikTok. “[With] taking the artists’ vision and learning how they want to represent themselves online, you have to understand the nature of the platform and what makes sense.”
Compared to labels’ close working relationships with artists, Stahl described Lighthouse as being “two degrees separated” from them. “I prefer working with artists that aren’t really looking to get on platform because it’s kind of difficult when we’re so separated,” she explained. “We’re not looking to make content, we’re looking to create success with music.”
“You can do both,” she continued. “You can find avenues to create really successful content, and sure, there might be a song that’s a really good fit for the platform as is, or you might need to throw in an ad-lib or make a little mash up. You can do that with the artists where it’s coming from their profile, or you can do that from finding an influencer that has a good fan base and have them launch the sound from their page or from the DSP release on platform.”
Stahl gave a compelling example. During the pandemic, she got her client — EDM producer Said the Sky, whom she’s been managing for the last nine years — to practice making TikTok videos. The result was a now-viral snippet (featuring an ad-lib that goes, “Wait, I can do that better,” followed by dubstep music), which, despite Said the Sky never wanting to officially distribute it, has now soundtracked more than 100,000 TikTok videos, according to Stahl.
When it comes to knowing when’s the right time to invest in a TikTok campaign, Morris discussed tapping into one’s intuition. She recalled how client Gracie Abrams‘ performance of “I Know It Won’t Work” on Jimmy Kimmel Live! went viral on TikTok. “Instead of focusing on what the single is for the project, it’s like, ‘Hey, we’re seeing internet culture touch this track and really, really resonate with it,” she said.
“If it’s moving, put f—nig money into it. That’s the best advice I could give to someone,” Stahl added. “Don’t be like, ‘Oh well, it’s already moving. We’ll just let it ride out.’ My advice would be if it’s moving, take full advantage. We know that it’s working in this specific niche or community on TikTok, let’s take that and try to do it in another niche, or let’s go find that community on a different platform and go for it again.”
From Dolgin’s perspective as someone who works exclusively with creators, it’s all about pairing the right influencers with song campaigns and “never about making the song go viral,” she said. “But, I will always guarantee that you’re getting the best influencers possible for the song and for the sound.”
Morris ultimately compared working in TikTok to working in stocks because of they’re constantly watching how songs and sounds are peaking and falling on the platform. “But you have to take the whole market into account,” she said. When it comes to forecasting trends regarding TikTok and the future of artists and their music on the platform, Stahl predicted there will be more “made by, made for TikTok” independent artists like JVKE who have no barrier to entry, while Dolgin said TikTok will champion specific creators and give them more resources to become successful like Alix Earle. Meanwhile, Morris explained how TikTok is culturally shifting to a more community-focused place.
“As genres start to merge as well, we’re going to start to lose these like clear identifiers, which is going to require people to really hone in on what they like and who they want to be and who they want to speak to,” she said. “And as more people get on TikTok, I think we’re going to have less of those big, big moments, but we’re going to have really valuable smaller moments within the communities with these artists, where they’re truly deeply connecting with people. Then it’s our job to bring those forward and become more consumable to the mainstream.”
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